Whistleblowers

New Protections for Airline Whistleblowers Land in Minnesota

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Whistleblowers who work for airlines have new protections, thanks to a ruling by the federal appeals court with jurisdiction over Minnesota. The ruling on August 31, 2017, allows employees to sue as whistleblowers under the Minnesota Whistleblower Act when they get fired for reporting illegal airline conduct after it happened.

The ruling makes it clear that whistleblowers have the right to be free from retaliation after reporting concerns about “post hoc,” or, after-the-fact law violations—and, more importantly, the right to sue the airline-employer under state whistleblower laws when such retaliation occurs.

In Watson v. Air Methods Corp, the plaintiff, a flight paramedic, had sued Air Methods Corp. using Missouri’s common law whistleblower protections after making post hoc reports about safety violations and getting fired. The Eighth Circuit had to decide whether the federal Airline Deregulation Act trumped all state efforts to protect whistleblowers in the airline industry because that federal act expressly bars states from enacting or enforcing laws that have the “force and effect of law related to a price, route, or service of an air carrier that may provide air transportation . . . .”

The Eighth Circuit decided that the federal Airline Deregulation Act does not expressly preempt state whistleblower lawsuits alleging retaliation for reports of after-the-fact law violations.  Preemption is a court doctrine that creates divisions between what rights parties can pursue under state law versus federal law.  Sometimes courts rule that federal law trumps state law, making state laws completely unenforceable in some respects due to the “Supremacy” of federal law under the U.S. Constitution.

The Watson ruling overturned a 15-year-old decision that had limited state law protections for airline industry whistleblowers. Prior to Watson, airline employers used a 2002 Eighth Circuit case called Botz v. Omni Air International to argue that whistleblowers in Minnesota, Missouri, and other Eighth Circuit states simply could not bring their retaliation claims under their more-favorable state whistleblower laws because they were preempted by federal law.

Employees who get fired because of after-the-fact reports can now pursue state whistleblower actions. Those claims aren’t preempted because they don’t interrupt air carrier service—they’re happening after-the-fact, after all.

Employees who get fired for refusing to act because they believe the act would be illegal, however, will arguably still not have state whistleblower protections.

If you are an airline employee outside of Minnesota who has been retaliated against for reporting after-the-fact legal or safety violations, you should contact a lawyer to see how your state laws apply to you.  The recent Eighth Circuit decision deepened a so-called “circuit split” between the various federal appeals courts on this particular issue. The Supreme Court could take up the issue in the future and decide a different outcome or make the Eighth Circuit’s decision the law for the entire country. Until then, rights will vary based upon jurisdiction.

All employees—regardless of state law—also have the protections of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21). Prior to the enactment of the law in 2000, aviation employees were not protected from retaliation if they reported possible safety violations or concerns. Under AIR21′s Whistleblower Protection Program, 49 U.S.C. Section 42121, employees can disclose aviation hazards without fear of reprisal. Federal law requires employees to act much faster—deadlines are quick so you must act fast if you’re a victim of retaliation. By comparison, Minnesota's state whistleblower law has a six-year statute of limitations (but anyone who's experienced retaliation should always act fast to protect legal rights).